Month: April 2017

Last month, the American Health Care Act (AHCA) failed to garner enough Republican support in the House of Representatives to pass their chamber and move on to the Senate. The failure was partly due to the fact that it had zero support from the Democrats, but also because of differing factions amongst the GOP. Democrats refuse to replace the Affordable Care Act (ACA), and many of the Republicans didn’t think that the AHCA went far enough in repealing and replacing the ACA.

Almost everyone agrees that the ACA as it stands right now is not the healthcare plan of the future for America. Those on the left side of the aisle want minor tweaking to keep it fluid, or maybe even more reform to make it more socialistic or universal. Those on the right side of the aisle want to get rid of much or all of the ACA and start over on healthcare reform. In reality, the only answer that will work best for all of America is one that lies somewhere in the middle of those two sides.

Throughout America’s history, there are many examples of legislation that were passed with a large majority of bipartisan support. Social Security and Medicare were enacted with strong bipartisan support. In 2014, the Workforce Innovation and Opportunity Act (funneling money into skilled worker education) was passed with great bipartisan support in both the House and the Senate. The problems we are seeing with the US healthcare laws (current and proposed) are because none of them have had any bipartisan support. When the ACA was passed in 2010, there was no Republican support for the bill in either the House or the Senate. While there were many reasons for no GOP support (and even some Democrats in the House voted against it), a big reason was that many people didn’t even know what the thousands of pages of legislation and regulations would fully accomplish. In the words of then House Speaker Nancy Pelosi:

“But we have to pass the bill so that you can find out what is in it – away from the fog of the controversy.”

Fast forward about 7 years and you will find the Republicans trying the same method with the repeal and replacement of the ACA. They drafted the bill in the House of Representatives behind closed doors with no opposition party input, brought it to the public and planned a vote all within a 2-week period. There was no Democratic support for the bill.

We now have 2 bills that have only been supported by the party that was/is in power over the 2 chambers of Congress and the presidency. This leaves the bills very vulnerable the next time there is a power shift in Washington. If the Republicans are able to force their bill through, the next time the Democrats have control of Congress and have a Democratic President, then they will try to change it to their idea of what is best. In reality, we need to have both parties sit down at the table and have some give and take. Compromise never feels great when you give up something that you want, but in the end, getting something that is best for everyone and helps everyone is better than temporary pride. The Democrats will need to give up some of their more socialistic healthcare ideas and the Republicans will need to give up their opposition to some of the current ACA provisions.

While I don’t pretend to have the answers for what to keep and what to do away with, I know that it’s not going to be an easy road and it’s not going to be a quick road, but it’s a road that we need to travel down to fix a system that isn’t working very well and isn’t headed in a good direction. Congressmen and women need to stop worrying about all the special interest lobbyist and come together to think about the American people. Talk with Doctors, talk to nurses and people in the business office of healthcare clinics. Congress needs to get input from the people who will be carrying out these policies, instead of pretending that they know how to make you healthy, as if they have already gone through med school. But most importantly, bipartisanship is the only strong answer for the future of healthcare in the United States.

Side note: While I personally believe that healthcare reform was something that was never granted to the legislative branch (see here), Congress has already opened that can of worms. So, I believe the only thing that can be done now is to fix what is currently in place.

So far, we have covered the powers granted by the US Constitution to the legislative branch (read here) and the executive branch (read here), which leaves just one final branch—the judicial branch of government. Once again, let’s start by defining what the judicial branch entails. The judicial branch is headed by the US Supreme Court with the lower level civil and criminal courts below it. Broadly, the purpose of the judicial system is the interpret and apply the law. Typically, most court cases begin in the lower courts with judges applying their own interpretation of the laws and the Constitution. No matter the outcome of the lower court’s ruling, the losing party can appeal that decision to a higher court—all the way up to the US Supreme Court. At that point in time, the justices of the Supreme Court will look at all the cases that have made it to the highest court and will decide if they will hear the case or leave the ruling of the lower courts in effect.

If the justices believe the case is worth hearing, arguments before the court are scheduled from October to April each year. The court hears arguments, asks questions, and sometimes, includes their own opinions in the questioning. Later, they come to a conclusion on the constitutionality of each case with a vote or series of votes. All 9 justices (odd number to decrease possibility of a tie) will vote based on their interpretation of the laws and the Constitution. Then, one of the justices will write a majority opinion, and one or more will write a dissenting opinion if the decision is not unanimous. By the end of June, all cases heard by the court will be ruled upon by the justices, and the majority and dissenting opinions are released. At this point in time, the court’s ruling is final…unless the Constitution is amended, or the court reconsiders its opinion and changes it (which is extremely rare).

Article III of the Constitution states what powers the Supreme Court is allowed:

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;– to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

Interestingly enough, the Constitution does not grant the power of judicial review (where the constitutionality of laws is interpreted), but that power has been in practice since the early 1800s without any legitimate challenge to the authority.

Let’s take a real world example to provide some context here. In 2010, President Obama signed the Patient Protection and Affordable Care Act (aka Obamacare) into law. Part of that legislation included a mandate that all people have health insurance or pay a penalty when they file their taxes each year. Many argued that this mandate was unconstitutional and outside of the powers granted to Congress in the Constitution. A lawsuit was filed against the mandate in Florida, and the District Court agreed that it was not constitutional. The government appealed that decision to the 3-judge panel of the 11th District Court of Appeals, who agreed with the lower court 2-1 that the mandate was unconstitutional. The government then appealed that decision to the US Supreme Court, and arguments were heard in March 2012.

The Supreme Court was divided on its ruling, but in a 5-4 decision, it stated that the individual mandate was constitutional by declaring it a tax rather than a penalty.

This 5-4 ruling by the Court is somewhat unprecedented. It actually changed the law that was passed by Congress and signed by the President rather than deciding if it was constitutional. The original powers granted to the Supreme Court in the Constitution do not allow them power to change laws; that power is given only to the legislative branch.

History has very few instances where the court has overstepped its power to rule…at least, until the last decade or so. Most recently, another example of judicial overreach has hit the news. In 2015, the Court ruled that the ban on gay marriage was not only unconstitutional, but they also legalized it in every state, ignoring what the individual state had to say about it. This is another incidence where the Court’s power was seen by many to be abused beyond what it was given.

If the court thought that the laws of the US or a state were not in compliance with the Constitution, they have every right to remove it, but they have not been given a power to make their own laws after invalidating another. They are also not allowed to rewrite a law so that it becomes constitutional; that is the responsibility of the legislature. In such a case, the Court should give its ruling to invalidate a law, and then, Congress can decide what it wants to do with the issue at hand.

There is a fine line between using and abusing powers granted by the Constitution, and lately, the Court has been teetering on the wrong side of its granted powers. As with the legislative and executive branches, the extra powers that the judiciary has taken upon itself will be very difficult to remove due to the precedence that has been set for future justices and judges.

This weekend, United Airlines made the headlines with a disturbing video of a passenger being forcefully removed from an overbooked plane. The videos were posted online by fellow passengers, many of whom were noticeably troubled at the actions against the passenger. There are many different angles to this story, so let’s try to break it down a little bit.

First, some background. United Airlines apparently overbooked a flight from Chicago O’Hare to Louisville, KY. There were several United employees that needed to board the full flight, presumably to fly elsewhere for staffing needs. United offered passengers up to $800 to volunteer to give up their seat and be rebooked on the next available flight. Well, no one offered their seat, so United picked 4 people at random to be “volun-told” that they would be giving up their seat.

Here is where the main story begins. 3 of the passengers who were chosen to deplane complied and took their money and new boarding pass for a later flight, but passenger David Dao refused, stating that he was a physician and had to see patients the next day. When Dao refused, United called in airport police to remove him from his seat. This is where the videos posted online begin, of Dr. Dao screaming as he is removed from his aisle seat and dragged down the middle aisle of the plane, then on to the hospital with injuries.

Was United in the wrong by removing Dao? Not really.
Was Dao wrong by refusing to deplane? Technically yes.
Was the airport police wrong in their handling of the issue? Yes and no.

Let me explain.

When you buy an airline ticket with any airline, your purchase includes you agreeing to the airlines “contract of carriage”. Basically, it is all the rules of the airline, weather disclaimers, fees, acts of God, etc, etc… but it also includes clauses as to reasons why you can be removed from a plane, which can include intoxication, poor hygiene and even overbooking. If you have ever flown with any airline, you know that overbooking is a common practice in the industry, because there will inevitably be something that causes 1 or 2 people to miss a flight. They could be delayed from another flight, traffic, cancelled itinerary for business reasons, etc. So generally, the overbooking process works out just fine with a full flight, but sometimes, it doesn’t work out that way, as is the case here. When that happens, someone isn’t getting on the plane and typically airlines offer generous compensation packages for someone who volunteers to get off.

United was well within their right to have these 4 passengers removed from the flight, based upon the contract of carriage that Dao signed when he booked the ticket. His refusal to deplane put him in breach of the contract he had “signed”, no matter who he was, or his occupation. Typically, being a frequent flier with the airline rewards program will keep you from being one of the “lucky” ones chosen to deplane, but it’s not a guarantee.

When Dao refused to deplane at the peaceful requests of the United staff, they called in the airport police. Dao continued to refuse and was then forcefully removed from the plane. The officer who removed him from his window seat was only doing the job he was instructed to do by his supervisors. Maybe he could have been more gentle, but his job was to clear the offending passenger and prepare the plane for departure.

Dao did what was not within his rights, again based on the contract of carriage and he was forcefully removed from the plane. I’m not sure what United or the airport police officers could have done differently in this situation, but I’m sure there will be an investigation and training that will come from this.

What is the moral of this story? Where has the respect for authority gone in this world? These kinds of things used to be unheard of, but have become all too common today and I think it is due to a lack of respect for those in authority. Dao was instructed to deplane by United staff as well as airport police and he refused, and was given the justice that was coming to him, which was to be removed from the plane. It didn’t look pretty, but I don’t know what could have been done any differently to change the outcome. Listen to reasonable orders given to you by your authority, even if you disagree with it. Sure, you can tweet about it later, start a White House petition, contact your congressmen/women, write a letter to the editor, or start a blog. But remember, they are still in a position of authority and are due some respect.

I hope Dao is able to recover quickly from his injuries and return home to continue seeing his patients. And I hope everyone is able to learn a lesson about this for their future airline travel, whether it is with United or someone else.

The United States (on both sides) has become too complacent with the status quo. You may be saying, “Whoa, wait a minute; where have you been? Don’t you see the changes happening?” Yes, yes I do, and if the American people don’t step up and do something about these changes that challenge our way of life, freedom, and happiness we will lose these liberties. The nation is divided into two factions (I know you feel it too). Half of the nation is actively trying to change the nation while the other half seems to be avoiding confrontation. This has lead us down the wrong road and has caused us to find ourselves in a corner. Due to the lack of confrontation in the past decade, any action taken on the side of freedom is immediately deemed an attack on the new United States. Thus, we are weary of change and more comfortable with maintaining the status quo whether we agree with it or not. I paraphrase Roy T Bennett when I say, “Change begins at the end of your comfort zone.” Our friends on the left have safe spaces and we have comfort zones. Both are detrimental to the American way of life. We must get out of our comfort zones and confront the issues head on. In recent months, I have noticed a push in the right direction (pun intended) and hope to see some continued change or push. Personally, I hope things continue to get more uncomfortable, because that means we’re doing something right! Some of you may not want the nation to change and think that the nation is in a great spot. I beg to differ. We have currently turned our backs on many of the very freedoms and liberties that were given to us by our founding fathers. I can hear it now “No we haven’t!” Yes we have, by letting these changes happen! Trump’s election was accredited to the “silent majority”. THAT’S US and illustrates my point! We have been silent! We have been comfortable! In the army, I learned to sleep anywhere. I also learned that the best way to avoid falling asleep was to make yourself uncomfortable. It’s time to WAKE UP!

In my previous post (read it here), we took a journey back to Civics class for a lesson on the powers of the legislative branch of the US government. Today, I want to continue that series on powers of government, now with focus on the executive branch. Before I get into all the nuances of the executive branch’s powers, let’s define what the branch actually is. The head of the executive branch is the President of the United States. It also includes the Vice President, the Cabinet, and the heads of independent agencies. In total, this branch employs over 4 million workers (which just shocks me at how large one singe branch of the US government truly is).

Now, moving on to the powers of the executive branch. Article II of the Constitution sets up the powers given to this branch of government. It is commonly understood that the executive branch “enforces the laws” made by the legislative branch. Some of those powers include:

– Commander in Chief of the Army, Navy, and National Guard
– Grant reprieves and pardons
– Make treaties
– Appoint ambassadors, Supreme Court Justices, and others
– Take care that the laws be executed faithfully
– Veto a bill from the legislative branch
– See [3] for a full list

Recently, the term “executive order” has become a common phrase seen in the news media. This term has been derived from the first section of Article II, where it states: “The executive power shall be vested in a President of the United States of America.” It is more broadly defined in Section 3 of Article II: “He shall take care that the laws be faithfully executed.” Neither of these passages explicitly grant executive order power, but it has been widely allowed by the courts and implemented by nearly every President since Abraham Lincoln.

Many argue that almost every president has issued executive orders, but the first numbered executive order came down in 1862 by Abraham Lincoln. (Side note: the number was assigned in 1907 and did not extend back beyond Lincoln’s presidency.) The most famous executive order was issued on January 1, 1863, also by President Lincoln – the Emancipation Proclamation, which freed the slaves in every state of the country.

Through almost the end of the 1800s, it was practically unheard of to see a president sign more than 100 executive orders during his tenure. Theodore Roosevelt changed that precedence when he signed over 1,000 executive orders in the beginning of the 20th century. Franklin Roosevelt later outnumbered Theodore by signing 3,728 (although this was over 12 years in office). Since then, no President has signed more than 1,000 executive orders, with all recent presidents signing less than 400.

While the number of executive orders given by presidents has declined in the past several decades, the scope of those orders seems to have increased greatly. Most of the orders given in the 1700s and 1800s dealt with lowering flags to half-staff or other minor issues. President Obama’s executive orders have increased the power of his branch of government by enormous margins. He even went as far as to say,

“We’re not just going to be waiting for legislation, I’ve got a pen and I’ve got a phone… and I can use that pen to sign executive orders and take executive actions and administrative actions.”

He threatened and then followed through with those threats to pass new rules and legislation that, in many people’s eyes, should have been left to the legislative branch of government.

We need to stop here and look at another presidential power—the executive memorandum. The memorandum carries with it the same power as an executive order, but is not required to be published. President Obama used a memorandum 644 times, and so far, President Trump has used it 12 times.

A few examples of what many consider to be executive overreach by the Obama administration include: picking which parts of the Affordable Care Act he would implement and enforce, legalizing millions of illegal immigrants (later rejected by the courts), raising minimum wage of federal employees, signing unilateral nuclear treaty with Iran without Senate ratification, unilateral gun control regulations, and many, many more.

In President Trump’s tenure to date, we have seen him sign 23 executive orders (as of April 1, 2017), so he is not shying away from using his pen, as the precedent has been set by his predecessors. Many of those orders have been used to roll back orders given under President Obama because, unlike laws passed by Congress, executive orders can be repealed with the stroke of the president’s pen. President Obama did just that with many orders signed by President Bush. Some have cried foul on President Trump’s orders regarding immigration, travel, the environment, etc., but no one seems to have gotten to the root of the problem here—too much power in one branch of government. President Obama’s overreach was OK with many in the media and general public because it aligned with their agenda, but President Trump’s overreach is all of a sudden wrong because it does not fit their talking points.

The moral of the story is that government needs to get back to the original process where Congress makes the laws, the president signs the laws, and the courts interpret the laws. The president should not be making laws and, on the same token, should not be choosing which laws he wants to enforce as part of his constitutional duties.

The problem with putting power back into the appropriate hands is that, once taken, power is hard to regain again. Congress needs to reclaim their power before the overreach gets more out of hand. Democrats and Republicans should be worried about the amount of power one individual has taken up himself, no matter the party in office.

We have discussed several issues lately concerning government and specific roles that it plays in our lives, but all of this has left me thinking, “What is the actual role of government?” So, today I’m starting a mini-series blog on the powers of government. In order to answer that question, we need to go back to ninth grade Civics class for a lesson. The United States of America is a constitutional republic (not a democracy as is often misunderstood). The powers given to the government are given and limited by the Constitution. So, in order to know what the role of government is, we need to go back to the Constitution to determine which powers it gives and which powers it limits.

The Preamble of the Constitution sets up the powers in:

“…in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…”

So, in that text, we see 5 points of power:

Establish Justice – law

Insure domestic tranquility – peace in the country’s borders

Defense – protect from invasion

General welfare – well-being of the citizens (notice this does not say social welfare as many want to interpret)

Liberty – ensure freedoms and protect from tyranny

The Constitution then goes on to specify the powers it grants and those that it limits. Today, I want to talk about the legislative branch of government, which means the House of Representatives and the Senate (aka Congress). The legislative branch is commonly known to “make the laws.” Specifically, Article I, Section 8 sets up those powers for Congress (we will discuss the other 2 branches of government in a future post). From this, we see that Congress gives numerous provisions including collecting taxes, borrowing money, making money, declaring war, etc. (see [4] in sources for full text). Nowhere in Article I do we find any powers to set up social security, healthcare, and many of the other welfare state functions that Congress has taken upon itself in the past century or so. Interestingly enough, the Bill of Rights of the Constitution specifically addresses powers that are not explicitly granted to Congress in the Constitution with the Tenth Amendment.

“The powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Congress has taken the liberty to increase its governance to extremely broad terms. This infinite interpretation of the congressional powers has increased spending on programs by an alarming amount. While many of these programs sound like a great program and may even accomplish a lot of good in the country, these social programs implemented by and paid for through congressional action is beyond the powers given to it. For example, the social programs implemented in the early and middle 20th century accounted for a little over 23 percent of the overall US budget in 1962. Today, that number has grown well above 63 percent of the overall budget (63.3 percent when last recorded in 2011 – with the increase in the welfare system under President Obama, that number has to be significantly higher now).

What this all boils down to is that issues related to welfare, healthcare, and other social services are not powers given to Congress but, instead, are powers that they took upon themselves to make. These assumed powers are costing the taxpayers trillions of dollars each year, and they are going largely unchecked.

I know of many noble, worthy causes and programs that have been funded by the government’s increasing focus on social programs. While I will not go into specifics on individual programs, many of them will be completely sufficient with a reduction in budget or even the elimination of federal funding. A majority of them are 501(c) non-profit organizations that have the ability to attract donations with tax-deductions. I believe that the American people have a desire to fund these types organizations and, when presented with a need, would be more than willing to step up and fill that need. Telethons across the country have reached goals of millions of dollars in a single day. Present the American people with a just cause, and watch it obtain funding for the next year or more every time.

In the meantime, let’s get government back to what it was originally intended to do and away from becoming what our Founding Fathers never envisioned.